In this paper, we raise two points. First, any rights‐based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define (...) which right should prevail, but without considering non‐rights‐interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously. (shrink)

Is it justified to hold that an agent S has a (moral) right to P if the duty-bearer is not specified? There is an intense ongoing debate on this question. There are two positions in the literature. On the one hand, O´Neill´s much-discussed account of rights holds that it is justified to say that an agent S has a right to P if and only if the duty-bearer is sufficiently determined – i.e. if and only if it is clear against (...) whom S may claim her right to P (O’Neill 1986, 1988, 1996, 2000, 2005, 2016). Call this, the ‘claimability condition’. On the other hand, interest-based theorists argue that it can be justified to say that an agent S has a right to P even if the duty-bearer is not sufficiently determined (Caney 2007; Griffin, 2008; Raz 1988; Tasioulas 2007; see also: Etinson, 2013; Ypi 2010). Who (if anyone) is correct in this fundamental discussion about the very nature of rights? In this paper, I provide an answer to this crucial question. Neither O´Neill nor interest-based theorists provide good reasons to justify their positions. However, I argue, the claimability condition is an existence condition of rights justified on the basis of their action-guiding character. The reason is that if the duty-bearer is not specified, the content of the right (its correlative obligation) does not sufficiently guide what the agent should do because it is indeterminate who is required to act (or refrain from acting). (shrink)

The much-discussed “claimability objection” holds that it is unjustified to believe that all individuals have a human right to subsistence because the bearers of the correlative duties are not sufficiently determined. This argument is based on the so-called “claimability-condition”: S has a right to P if and only if the duty-bearer is sufficiently determined. Practice-based theorists defend the human right to subsistence by arguing that if we take the existing human rights practice seriously, there is no indeterminacy about the allocation (...) of duties. In this paper, I challenge this (apparently compelling) defense of the human right to subsistence with a dilemma. If the claimability condition is true, the practice-based defense fails to undermine the claimability objection because the duty-bearer is determined in some, but not all, cases. If practice-based theorists reject the claimability condition, they generate an account of human rights that is problematic from the practical perspective because it may contain duties that are unable to guide action. (shrink)

The forfeiture thesis is posed as an independent thesis in moral philosophy according to which agents forfeit (or lose) rights if they perform certain act-types. According to many, this thesis plays a crucial role in the justification of (legal) punishment. In this paper, I argue that the forfeiture thesis is unnecessary – we can simply dismiss it without any substantive loss. Echoing an aspect of the specificationist approach to rights, the reason is that we may replace the forfeiture thesis with (...) an exception clause in the very content of the right not to be subjected to hard treatment: P has no right not to be subjected to hard treatment simpliciter, but a right not to be subjected to hard treatment unless P performs an act-type φ – e.g., murdering an innocent person. This alternative has substantive advantages over the forfeiture thesis, which, in turn, shows that the former cannot be reduced to the latter. (shrink)

International human rights law allows states to derogate some of their human rights obligations in times of public emergency. This essay attempts a normative assessment of the practice of derogation. We discuss, specifically, whether derogation is compatible with the logics and morality of rights. We notice that a major inconsistency between rights and derogation derives from the unilateral character of derogation: derogating parties are assigned a power-right to annul their own rights-based obligations. This contrasts with the idea, central to rights, (...) that rights-based obligations are owed to the right-holder. Only through consent of right-holders, we argue, can duties owed to them be modified or annulled. But whether the current practice of derogation is interpretable as a form of consent to rights infringement is highly disputable. (shrink)

What are the main conditions that any theory of human rights should satisfy to guide action? If agents must take action for a fairer world as human rights discourse suggests, this is a crucial question to reflect upon. In this paper, I make a proposal. I argue that any theory of (moral) human rights that guides action on the basis of correlative duties must satisfy three key conditions. The first condition is focused on the specification of act-types, the second concerns (...) the distribution of correlative duties, and the third is focused on the resolution of (resolvable) conflicts of human rights. I show that this proposal has substantive implications because it implies to reject, challenge and, in some cases, resist ideas that are commonly accepted in the literature on human rights. (shrink)

In this paper, I argue that specificationism deprives rights of any significant role in practical reasoning before it arrives at a conclusion, while the generalist conception preserves the practical role we intuitively assign to rights in reasoning directed to action. Assuming that a conception of rights faithful to ordinary practical reasoning is preferable, this fact gives a strong reason to prefer generalism over specificationism, although not without qualification. To be satisfactory from the practical standpoint, any account of rights that adopts (...) the generalist view must include second-order principles to orientate agents with regards to addressing rights conflicts. I show that my practical analysis is substantially different from others available in the literature. (shrink)

RESUMO Em geral, podemos encontrar na literatura (tanto na popular quanto na acadêmica) atribuições de deveres coletivos complexos a coletivos não estruturados extensos de indivíduos. Por “deveres coletivos complexos”, quero dizer deveres coletivos que, de maneira plausível, exigem que os membros individuais de um coletivo não estruturado extenso empreguem tipos diferentes de ações contributivas para alcançarem um objetivo coletivo - por exemplo, o suposto dever coletivo universal de acabar com a pobreza mundial. Neste artigo, defendo que esses deveres não orientam (...) a ação. O motivo é por que eles não passam no que chamo de “teste de orientação de ação”. Esse teste pressupõe a crença intuitiva de que um dever moral orienta a ação apenas se, para o portador do dever, estiver claro o tipo de ação que ele deve praticar após a atribuição do dever. Deveres coletivos complexos atribuídos a coletivos não estruturados extensos não passam nesse teste porque, embora cada portador do dever (ou seja, cada membro do coletivo) receba orientação sobre o fim que se deve atingir em conjunto, não está claro para esses agentes o tipo de ação que cada um deles deve por em prática. (shrink)